Author: Simran Chaudhary Second Year L.L.B (Honors) Student At Galgotias University
Abstract
Same-sex marriage topic has become more debatable throughout time. The introduction of criminal punishment for same sex relationship was started by Britishers who drafted the Indian Penal Code. Section 377, criminalized such relationships with imprisonment and fine, thereby creating a contentious environment for such people.
The social structure of India is not so in support of this vulnerable section. The “Right to Marry,” protected by Article 21 of the “Right to Life,” is an important part of a person’s life that our constitution provides everyone with the freedom to choose their life partner. So by not providing legalization to same sex marriage we are in one or another curtailing the fundamental rights of the LGBT Community.
INTRODUCTION
The LGBTQ+ community refers to the small community of our society that deviates from social norms in terms of both gender and sexual preferences. This Community, whether it is Indian or Western, has been a part of our society for many years. The residents of this society were a part of them, whether it was the king’s court, a peasant’s home, or even the monarch himself.
LGBTQ+ community consists of various groups which are divided according to their gender as well as sexual preferences these groups are:
L stands for Lesbian – A woman is a lesbian who has sexual attraction towards the same gender, this term falls under the umbrella term- homosexuals.
G stands for Gay- It is a word that belongs to individuals having sexual preferences for the same gender. This word is used for males who shows sexual attraction towards other males.
B stands for Bisexual community- Those who identify as bisexuals are those who prefer one gender over the other. They are the group that receives the most criticism since men who are drawn to women are perceived as straight and attracted to women as gay.
T stands for Transgender – This community represents individuals that have opposite gender orientations. If an individual has been given a birth certificate of male but present to be a woman then they are known as trans women. On the other hand, if a female has been given a birth certificate as female but present to be a man then they are known as trans men.
Q stands for Queer- It signifies the queerness of the collective. Terms like intersex, asexual etc. all come under this category.
LGBTQ community has been suffering in the hands of the society in terms of their rights. In India people used to call them as “chakka, Hijra, Metha etc. to disrespect them. The most significant aspect of a person’s existence in political, cultural, and social context is marriage. Liking a person of a same sex is not considered good in Indian society but it is a natural thing, no one can help it. But nowadays such people are coming forward wanting the respect and rights as same as others are having. The reason behind this is the spreading of awareness about the LGBTQ community.
International Perspective
Many Countries are legalizing same-sex marriage amid a steady advance in rights for LGBTQ+.
Thirty-five countries, including United States of America (USA) have legalized same- sex marriage. Many countries even today also do not recognize it. International Organizations, like United Nation (UN) have passed many resolutions in support of LGBTQ+ but human rights groups say these organizations have limited power.
In 2003 Belgium also legalizes the same-sex marriage.
Countries which legalizes same sex marriages are:
Canada and Spain in 2005
South Africa in 2006
Norway in 2008
Sweden in 2009
Argentina, Portugal, Iceland in 2010
Denmark in 2012
France, New Zealand, England, Wales in 2013
Luxembourg, Scotland in 2014
U.S, Ireland, Finland, Greenland in 2015
Colombia in 2016
Malta, Australia, Germany in 2017
Austria, Taiwan, Ecuador, Northern Ireland in 2019
Costa Rica and Switzerland in 2020
Chile, Cuba, Mexico, Slovenia, Switzerland in 2022
Andorra and Estonia in 2023
Indian Perspective
India is a Conservative Nation. India is a secular country which safeguards an individual’s Freedom to practice, profess and propagate any religion of choice under Article 25. Being religiously inclined, many aspects of society and personal laws are based on faith. This includes aspects regarding same-sex marriage. The transition from a liberal society to conservative society was legally aided by the British in India via Indian Penal Code, specially 377. This made the relationship between same sex people punishable with imprisonment and fine which creates a bad environment and creates a discrimination against the same sex couple. The ideas of western society, which were particularly dominated by the church, were imposed on the Indian society.
Judicial Review of LGBTQ Rights in India
Several laws and enactments have been passed by the legislature for providing legal rights in support of the LGBTQ community. In the past few years many judgements have been passed by the Supreme Court which recognized the basic rights of this marginalized group.
The following are the most important judgements of the Supreme Court on this subject.
Naz Foundation v Government of NCT Delhi
The Judgement of this case was delivered by a two-judge bench of the Delhi High Court which said that criminalization of consensual sex between homosexual sex between adults is violation of Article 14 and Article 15 which says about the right to equality and right against discrimination respectively. The Delhi Court declared section 377 of the IPC (INDIAN PENAL CODE) as unconstitutional. In Public Interest Litigation filed by the NGO, the court declared it to be in violation of Articles 14,15,16.
NALSA V. Union of India
The Judgement was delivered by a two-judge bench in 2014. Transgender persons were considered as the third gender by the Supreme Court in this judgement. Guidelines protecting the right and freedom of the transgender community, was laid down by the Supreme Court.
Justice (Retd.) K. S. Puttaswamy v. Union of India
The judgement in this landmark case was given by the nine-judge bench of the Supreme Court in 2017. The court stated that the Right to Privacy is an integral part of part 3 of the Constitution that guarantees fundamental rights. Right to Privacy extends to all the individuals, irrespective of their gender and sex.
Navtej Singh Johar v. Union of India
The court overruled its previous judgement given in Suresh Kumar Koushal v. Union of India and declared section 377 as unconstitutional as it violated Article 14,15,19 and 21 of the Constitution. It was one of the landmark judgments of Supreme court with regards to right of equality to LGBTQ community. This community also deserves equal rights and respect like any other individual.
The latest judgement with regards to same sex marriage was passed by Supreme Court in 2023 in Supriya Chakraborty case.
Supriya Chakrabarty v. Union of India
In this case the court has declined to recognize the right of same-sex couples to marry or have civil unions.
The court said that right to marry is not inherently a fundamental right, parliament has the authority to make determinations regarding the legalization of same-sex marriage.
Challenges faced by LGBTQ+
This community has been suffering for decades and has been discriminated against in their personal as well as professional lives. Due to this they even have to hide their true self just to fit in the society. The areas where the discrimination exist:
Family
In a family a child grows up expects unconditional love and care from them. When a child is going through confusion in their gender orientation or sexual orientation, strict families and heteronormative culture makes it hard for the child. Due to this child have a fear of rejection and neglect from their parents. But now these things are changing parents are becoming a little more acceptable towards this community.
School
A school is a place where we find friends, we enter the social place, which has a great impact on our lives. But in Schools also the children who falls under LGBTQ are not treated equally.
Work
They face harassment as well as lack of job opportunities and discrimination at the time of recruitment as well after they get the job. But now organizations are coming forward with number of policies to prevent discrimination against LGBT community.
Public Spaces
This community is not able to express themselves in the public areas of the stereotypical behavior of people towards them. They are getting harassed publicly.
In the last few decades, the fight for the rights and freedom of this community has been increasing. The activists working towards this cause had a huge impact on this community.
One of the activists was Shakuntla devi who is known as the human computer. She wrote a book known as the World of homosexuals in 1977 which highlighted the sufferings and challenges of this community. In the book, many homosexual men were interviewed and hence the book became first major study of homosexuality in India. Because of her contribution towards this community an all-India Hijra conference held in Agra in 1981(Srivastava and Kumar 2019: 31).
Recommendations to improve LGBTQ+ Community status
The voices of this community should be heard, for that they should get representation everywhere. The government should employ individuals from LGBTQ community in the parliament so that their voices can be heard, so that they can share their views and opinions about the situations they are facing. Spokespersons from this community should be made from each state. People need to be educated and made aware that everyone has the right and freedom to choose their own partner. Privacy should be respected and protected. It is the sexual preference of an individual, and thus rightly said in the Puttaswamy judgement, “equality demands that sexual orientation of each individual be protected on an even platform”. Education should be dispersed at all levels, starting with school as a part of sex education. Another important sector is law and enforcement. There are many cases of harassment by police against this community. This needs to be resolved.
Workplace (private as well as public sector) should be given proper rules and regulation as well as laws created by the government so that gender and sexual related harassment, discrimination and abuse can be minimized. Strict laws and punishment should be made so that people committing this crime have a fear.
Conclusion
Now is the time to acknowledge that there exists a community within us who conform to a different sexual preference than heterosexuals and that sexual preference is only one aspect of their existence.
FAQs
What is LGBTQ?
LGBTQ stands for Lesbian, Gay, Bisexual, Transgender, Queer.
Will Same Sex Marriage lead to the Collapse of Societal Structure?
The Society thinks that the Problem switch lies with same sex marriage not getting a constitutional validity is because of the Procreation of Children.
Is there something wrong being lesbian, gay, bisexual or transgender?
No, there is nothing wrong in being a lesbian, bisexual, gay, transgender. Homosexuality is not an illness which needs to be treated.
